Andras Szucs v Greensquare Group Ltd

The Employment Appeal Tribunal allowed the appellant's appeal and remitted the case to the Employment Tribunal because the tribunal's written reasons were not Meek compliant. The EAT held that, although the tribunal had set out the correct legal tests (including the test for victimisation under section 27 of the Equality Act 2010 and the burden-shifting provision in section 136), it failed to identify clearly the reason or reasons for dismissal and to explain why contemporaneous documentary evidence and remarks that could support a causal role for protected acts were rejected.

The tribunal had treated the decision-maker's description of the claimant as a 'complainer' as separable from the protected acts (applying Martin v Devonshires Solicitors) but did not explain, in the absence of oral evidence from the decision-maker, why that label was separable from the protected acts. The combination of unclear identification of the reason for dismissal, the use of language associated with a different causation test, and the absence of explanation for preferring some documentary inferences over others meant the claimant could not understand why he had lost.

This was an appeal from an Employment Tribunal judgment dated 18 August 2022 which dismissed the claimant's victimisation complaint under the Equality Act 2010. The claimant (who had less than two years' service) relied on a series of protected acts admitted by the respondent, including grievances and ACAS early conciliation. The tribunal accepted documentary evidence including a synopsis prepared by the HR business partner, a telephone meeting covertly recorded by the claimant (and transcribed), and a dismissal letter. The tribunal found deterioration in the claimant's performance, attendance and attitude and concluded these were the overwhelming reasons for dismissal. It also concluded that the decision-maker's reference to the claimant as a 'complainer' was separable from the protected features of the complaints and that the protected acts were not the effective or substantial cause of dismissal.

Nature of the claim: Victimisation under section 27 of the Equality Act 2010; the claimant sought to establish that dismissal was because he had done protected acts.

Issues framed by the court:

• Whether the tribunal applied the correct causation test and, specifically, whether the protected acts were a significant or material influence on the dismissal;
• whether the tribunal lawfully applied the separability principle in Martin v Devonshires to treat being a 'complainer' as separable from the protected acts;
• whether the tribunal properly applied the burden-shifting rule in section 136 of the Equality Act 2010;
• whether the tribunal's written reasons met Meek requirements so that the claimant could understand why his claim was rejected.

Court's reasoning: The Employment Appeal Tribunal accepted that the tribunal set out the correct legal tests in its recitation of the law, drawing on authorities including Nagarajan, Fecitt and related cases. Nonetheless, the EAT found deficiencies when the tribunal applied the law to the facts. The tribunal did not expressly identify, as a matter of fact-finding, the reason or reasons for dismissal in a way that permitted a reader to evaluate separability or causation. In particular it did not explain why contemporaneous documents and remarks (the HR synopsis and the recorded telephone conversation) that could support a causal connection between the protected acts and detriment were nevertheless rejected. Because the tribunal did not clearly explain why it considered the 'complainer' label separable from the protected acts and did not say the protected acts played no part in the dismissal, the reasons were inadequate. The EAT did not find the original decision perverse and declined to substitute its own findings; it remitted the case to the same Employment Tribunal for further decision-making.

Disposition: Appeal allowed on reasoning grounds; remittal to the same Employment Tribunal for reconsideration. The EAT considered but rejected the claimant's submission that the matter should be heard by a fresh tribunal.

The appeal was allowed. The Employment Appeal Tribunal concluded that, although the Employment Tribunal had set out the correct legal tests (including Section 27 and Section 136 of the Equality Act 2010 and the separability principle from Martin), its written reasons did not adequately identify the reason or reasons for dismissal or explain why documentary material and inferences that could support a causal role for protected acts were rejected. For those defects the reasons were not Meek compliant. The EAT therefore remitted the matter to the same Employment Tribunal for further determination rather than substituting findings or ordering a fresh tribunal hearing.

Appeal from an Employment Tribunal judgment sent to the parties on 18 August 2022. Permission for a full appeal hearing was given by HHJ Auerbach (as recorded in the judgment). The appeal was heard in the Employment Appeal Tribunal and determined by His Honour Judge Beard, producing this judgment [2024] EAT 160.